Honble MATHUR, J.–Six persons were put to trial before the learned Addl. Sessions Judge, Nagaur, for the offence arising out of the incident of murder of one Bhanwar Nath son of Mangi Nath and injuries caused to P.W. 7 Prem Nath son of Bhagirath Nath. The learned Addl. Sessions Judge, Nagaur, by impugned judgment dated 2.8.82, acquitted accused Prem Nath son of Roop Nath, Roop Nath s/o Rana, Suraj Nath S/o. Roop Nath and Bhanwar Nath son of Hari Nath. However, he convicted accused appellants Amar Nath and Ratan Nath for the offence u/Sec. 304 Part II IPC and sentenced each of them to seven years rigorous imprisonment and to pay a fine of Rs. 500/-and in default of payment to further undergo one years R.I. (2). Briefly put the facts may be stated as under: The case pertains to murder of Bhanwar Nath son of P.W. 14 Mangi Nath. It is alleged that the deceased Bhanwar Nath and his brother-in-law Prem Nath (P.W. 7) in the morning of 28.06.1982 at about 6 A.M. had gone to the field of Roop Nath for answering the call of nature. At that time, PW 14 Mangi Nath was preparing tea at his Dhani. PW 16 Sampu Nath aged 12 to 13 years came running and informed that a quarrel was going-on the field. On hearing this, PW 16 Sampu Nath, PW 13 Barjudi w/o. Mangi Nath, Panchu Nath and PW 2 Chhotu Nath, another son of Mangi Nath, rushed to the place of incident. It is stated that first appellant Amar Nath gave a `farsi blow on the head of Bhanwar Nath and second appellant Ratan Nath gave a second blow by `bhala which struck on his nose. Bhanwar Nath fell down. Thereafter the accused Amar Nath, Bhanwar Nath, Ratan Nath, Roop Nath, Suraj Nath and Prem Nath assaulted Bhanwar Nath son of Mangi Nath by `farsi, `Kassi and `lathis etc. It is further stated that PW 7 Prem Nath was also assaulted by the accused persons. It is stated in the FIR that the incident was witnessed by Madho Nath as well. The FIR Ex. P. 37 of the incident was registered at Police Station, Surpaliya Distt. Nagaur on 28.6. 1981 at 2.30 PM on the basis of statement of PW 14 Mangi Nath, recorded by the Incharge of the Police Station. It is stated in the FIR that the incident was witnessed by Madho Nath as well. The FIR Ex. P. 37 of the incident was registered at Police Station, Surpaliya Distt. Nagaur on 28.6. 1981 at 2.30 PM on the basis of statement of PW 14 Mangi Nath, recorded by the Incharge of the Police Station. Giving the background of the incident, Mangi Nath stated that there was some dispute between him and his two brothers with respect to partition of the property belonging to their late father. He had received a piece of land in excess on account of which other brothers were not happy with him. Near his `dhani is the `dhani of accused Amarnath, husband of sister. He had applied for a loan for digging the well. However, the same was rejected because of the objections raised by his brothers. He further stated that about ten years back, a loan was taken by them for the purpose of purchase of tractor for which the common land was mortgaged. After the loan was paid, accused Ratan Nath took the tractor in his possession. Later on, the said tractor was sold for a sum of Rs. 21,000/-. The said amount was equally distributed among the three brothers. Each of them received Rs. 7,000/-. However, there was some dispute between the three brothers, which laid to the registration of a criminal case. Therefore, a day before the incident, all of them had gone to Nagaur to attend the hearing of the case. The brother-in-law of deceased Bhanwar Nath namely P.W. 7 Prem Nath was also in Nagaur in connection of a court case. At about 5.30 PM on the shop of Shanker Mali while he was busy in purchasing certain domestic articles, an oral altercation took place outside the shop between the accused Amar Nath and PW 7 Prem Nath. At that time, Kamal Nath (brother of PW 7 Prem Nath) also arrived there. Amar Nath gave beating to Kamal Nath by shoes. Prem Nath also belaboured Amar Nath and they could be separated on his intervention. At about 6 PM by the evening bus, deceased Bhanwar Nath, his wife and PW 7 Prem Nath returned to the `dhani. Amar Nath also returned alongwith them in the bus. After taking their meals, they slept in the house. Prem Nath also belaboured Amar Nath and they could be separated on his intervention. At about 6 PM by the evening bus, deceased Bhanwar Nath, his wife and PW 7 Prem Nath returned to the `dhani. Amar Nath also returned alongwith them in the bus. After taking their meals, they slept in the house. In the morning, the above referred incident took place in which Bhanwar Nath died and PW 7 Prem Nath sustained injuries. On this information, police registered a case for the offences under Secs. 147, 148, 149, 323,324, 325,326,307 & 302 IPC and proceeded-with investigation. After usual investigation, the police laid chargesheet against six accused persons. (3). The accused persons were charged for the aforesaid offences. They denied the guilt and claimed trial. The prosecution in support of the case examined nineteen witnesses and produced number of documents. In his statement under Sec. 313 Cr.P.C. accused Amar Nath took the plea of right of private defence. He stated that Ratan Nath was assaulted by Prem Nath, Bhanwar Nath and Chhotu Nath. On 27.6.1981, Prem Nath and Mangi Nath etc. had advised for compromising the dispute. There were some talks on the issue but it turned into a quarrel. Then they returned to their village. In the morning, he had gone to the field, at that time, the accused persons arrived there armed with lathis. One of the lathi blow was inflicted on his head. While he was defending, he caused one injury to Prem Nath by the opposite side of the `kessi. (4). Analysing the prosecution evidence and other material on record. the learned Judge acquitted the four accused persons and convicted and sentenced the accused appellants as stated above. The findings of the learned trial Judge can be summarised as follows: (a) The complainant party was aggressor. The Court found that on 27.06.1981, accused Amarnath belaboured brother of PW 7 Prem Nath and therefore, Prem Nath was angry with Amarnath and this was the probable reason for PW 7 Prem Nath to visit the `dhani of PW 14 Mangi Nath. The reason given by Prem Nath that he had gone to leave his sister i.e. wife of the deceased, cannot be believed. The reason given by Prem Nath that he had gone to leave his sister i.e. wife of the deceased, cannot be believed. The court also held that PW 7 Prem Nath went to the `dhani of PW 14 Mangi Nath to take revenge from Amarnath on account of the incident, which took place on 27.6.81 wherein Amarnath had beaten his brother Kamal Nath by shoes. (b) The plea of the accused that he inflicted injury in right of private defence of person is probable in the facts of the case. (c) The accused persons did not acquire right of private defence pertaining to the property as it is not the case of the accused persons that the complainant party had come with a view to take possession over the land. (d) The material part of the prosecution story that the accused persons had gone to the field for answering the call of nature cannot be believed as no human excreta was found at the place of incident. This suggests that the complainant party has concocted the story. (e) The prosecution deliberately did not produce the material eye witness Madho Nath. (f) The evidence of recovery of the weapons is of no use as no human blood has been found on any of the recovered articles. (g) The prosecution has failed to show as to how the incident commenced. (h) As per the statement of PW 7 Prem Nath, accused Suraj Nath and Prem Nath gave lathi blows on his back but the injury report Ex.P.20 shows that there is no injury on the back. As per the statement of PW 14 Mangi Nath, all the six injuries on the person of deceased Bhanwar Nath were caused by accused Amar Nath and Ratan Nath. The learned Judge concluded that this indicated that rest of the accused persons have been falsely implicated and they did not cause any injury to the deceased. (i) The presence of the accused Suraj Nath and Bhanwar Nath on the spot is doubt ful. (j) Injured Prem Nath and deceased Bhanwar Nath were the aggressors. (k) The prosecution has not explained injuries on the person of accused Amar Nath. (l) The accused persons did not exceed in exercise of right of private defence of person in causing injuries to Prem Nath. (j) Injured Prem Nath and deceased Bhanwar Nath were the aggressors. (k) The prosecution has not explained injuries on the person of accused Amar Nath. (l) The accused persons did not exceed in exercise of right of private defence of person in causing injuries to Prem Nath. (m) There is no evidence that the accused Bhanwar Nath and Roop Nath caused any injuries to deceased Bhanwar Nath and, as such, it cannot be said that the accused persons exceeded the right of private defence of person. Thus, Bhanwar Nath and Ratan Nath are entitled to be acquitted of the offence under Sec. 302 or 302/149 IPC. (n) The injuries on the person of accused Amar Nath vide Ex.D.2 are simple in nature. As such it cannot be said that on account of attack on Prem Nath and Bhanwar Nath, an apprehension of death could be entertained by the accused appellants. Thus, the appellants exceeded the right of private defence in killing Bhanwar Nath. Consequently, they are guilty of offence of culpable homicide not amounting to murder. (5). Succinctly put the findings of the learned Judge are that the complainant party was aggressor; that the incident has not taken place in the manner as set out by the prosecution; that the accused persons rightly acted in right of private defence so far as causing injuries to Prem Nath is concerned, however, they exceeded the right of private defence in committing the murder of Bhanwar Nath. The learned Judge accordingly convicted the appellants of the offence under Sec. 304 Part II IPC and sentenced them as stated above. (6). Assailing the judgment,learned counsel for the appellants pointing out large number of infirmities and contradictions in the statements of the eye witnesses namely PW 7 Prem Nath and PW 14 Mangi Nath, contended that they are wholly unreliable witnesses and no reliance can be placed on their testimony. It is also submitted that PW 1 Barjudi and PW 2 Chhotu Nath cannot be said to be eye witnesses of the incident. It is further submitted that the prosecution has failed to explain the injuries on the person of appellant Amar Nath and, as such, it must be held that the prosecution has suppressed the genesis and origin of the incident. It is further submitted that the prosecution has failed to explain the injuries on the person of appellant Amar Nath and, as such, it must be held that the prosecution has suppressed the genesis and origin of the incident. Learned counsel relying on a decision of the Apex Court in the case reported in AIR 1976 SC 2263 (1), submitted that non-examination of the material witness Madho Nath is fatal to the prosecution. Learned counsel has also pointed out that ocular evidence is inconsistent with the medical evidence. Lastly, it is submitted that keeping in view the fact that there are injuries on the head of accused Amar Nath, accused rightly acted in right of private defence of person. Thus, the learned Judge has erred in holding that the accused persons exceeded in exercise of the right of private defence. (7). On the other hand, it is argued by the learned Public Prosecutor that there is absolutely no reason to disbelieve the statement of injured PW 7 Prem Nath and PW 14 Mangi Nath. So far as the explanation of the injuries is concerned, it is submitted that non-explanation of the injuries does not affect the prosecution case as the injuries sustained by the accused appellant Amar Nath are minor and superficial. He has placed reliance on a decision of the Apex Court reported in AIR 1975 SC 147 (2). (8). Mr. R.K. Soni learned counsel appearing for the complainant submitted that the accused Amar Nath is not entitled to the benefit of right of private defence of person as he has admitted in his statement under Sec. 313 Cr.P.C. that he had given a lathi blow on the head of Bhanwar Nath. It is further submitted that looking to the minor and superficial injuries on the person of Amar Nath, the trial court rightly held that accused appellants exceeded the right of private defence. (9). I have considered the rival contentions and scanned the prosecution evidence. PW 1 Barjudi has stated that her son Bhanwar Nath and his brother-in-law Prem Nath had gone to answer the call of nature. In the morning, her husband was preparing tea in the `dhani. At that time, Shambhu Nath gave a call that a quarrel was going on in the field of Roop Nath and Bhanwar Nath and Prem Nath were being assaulted. In the morning, her husband was preparing tea in the `dhani. At that time, Shambhu Nath gave a call that a quarrel was going on in the field of Roop Nath and Bhanwar Nath and Prem Nath were being assaulted. Thereafter, she alongwith her husband rushed to the place of incident. She found that all the accused persons were giving beating to Bhanwar Nath and Prem Nath. She also stated that accused Amar Nath and Bhanwar Nath were armed with `pharsi whereas Ratan Nath was carrying `bhala. Roop Nath was carrying `kassi in his hand and Suraj Nath and Prem Nath were armed with Lathis. She also stated that Bhanwar Nath had sustained injuries on his head on account of which there was bleeding from the nose. From a reading of the statement of this witness, it appears that she did not witness the actual incident in which deceased Bhanwar Nath was assaulted. Thus, she cannot be said to be an eye witness. In the cross-examination at the first instance, she denied that there was any injury on the person of accused Amar Nath. Later-on, she tried to explain the injuries by saying that her sister-in-law later caused injuries to Amar Nath by a blade. Thus, she is not a truthful witness. (10). PW 2 Chhotu Nath is the brother of deceased Bhanwar Nath. He has stated that in the morning, Bhanwar Nath alongwith his brother-in-law Prem Nath had gone to answer the call of nature. On hearing the cries of Shambhu Nath, he rushed to the place of incident alongwith his father, mother, Panchu Nath and Sampu Nath. All the accused persons were giving beating to deceased Bhanwar Nath and Prem Nath by lathis, Kassi, `pharsi, `bhala etc. He intervened, on account of which he also sustained injury on his hand. A reading of the statement of this witness shows that he is not an eye witness of the incident. He reached on the spot when the quarrel was almost over. (11) PW 7 Prem Nath is the most important witness in this case. He is the brother-in-law of deceased Bhanwar Nath. He stated that on 27.6.81, he alongwith Bhanwar Nath and Chhotu Nath had gone to Nagaur for attending the hearing of a case. Thereafter, he went to village Sarasani to leave his sister on the instructions of Bhanwar Nath. (11) PW 7 Prem Nath is the most important witness in this case. He is the brother-in-law of deceased Bhanwar Nath. He stated that on 27.6.81, he alongwith Bhanwar Nath and Chhotu Nath had gone to Nagaur for attending the hearing of a case. Thereafter, he went to village Sarasani to leave his sister on the instructions of Bhanwar Nath. He has also stated that in the morning of 28.06.81, he alongwith his brother-in-law (gainer) namely Bhanwar Nath had gone to the field of Roop Nath to answer the call of nature. While they were sitting, accused Suraj Nath and Prem Nath arrived there armed with lathis. He got up and rushed toward his brother-in-law. He saw that his brother-in-law Bhanwar Nath was being assaulted by Amar Nath, Ratan Nath, Roop Nath, Bhanwar Nath, Suraj Nath and Prem Nath. He stated that Amar Nath gave a `pharsi blow on the head of Bhanwar Nath, which struck on the left side of his forehead. Ratan Nath caused injuries by `bhala, which struck on his nose. Bhanwar Nath warded of `bhala blow given by Ratan Nath on account of which his hockey stick was broken. He also stated that Bhanwar Nath used to keep hockey with him because he was lame. He also stated that Ratan Nath caused an injury on the heard of Bhanwar Nath by kassi. He, however, stated that he was not aware whether it was caused from the right side or the opposite side. He admitted that a quarrel had taken place between his brother Kamal Nath and Amar Nath at Nagaur a day prior to the date of incident. He further stated that there, in the field of Roop Nath, the place at which he sat for answering the call for nature, human excreta was discharged, which was lying on the spot. While he was answering the call of nature, accused Suraj Nath and Prem Nath gave lathi blows on his back. (12) PW 14 Mangi Nath reiterated what he stated in the FIR. He stated that in the morning, Bhanwar Nath and Prem Nath had gone to the field of Roop Nath to answer the call of nature. On hearing the cries of Sampu Nath, he alongwith his wife and children rushed to the spot. He saw that Amar Nath gave a `pharsi blow on the head of Bhanwar Nath. He stated that in the morning, Bhanwar Nath and Prem Nath had gone to the field of Roop Nath to answer the call of nature. On hearing the cries of Sampu Nath, he alongwith his wife and children rushed to the spot. He saw that Amar Nath gave a `pharsi blow on the head of Bhanwar Nath. It is also stated that Ratan Nath caused injuries by `bhala. In the cross examination, he admitted that when the police reached on the spot, small pots, which Prem Nath and deceased Bhanwar Nath had taken with them, were not there as he had collected them and brought at house. He also admitted that he was not aware as to how many injuries were caused by accused Amar Nath as he had left from the place of incident. He also stated that there was bleeding from his head. (13). PW 11 Dr. Satyendra Kumar has stated that he examined Prem Nath on 28.6.81. He prepared the injury report Ex. P. 20 and noticed the following injuries: ``1. Incised wound 9cm x 2cm x1/2cm on mid of head at both parietal bone joint; 2. Incised wound 9cm x 2cm x 1/2cm on middle of head at post parietal joint; 3. Lacerated wound 8cm x 2cm x 1cm on post right side of head at occipital region; 4. Incised wound 6cm x 1/2cm x 1cm on anterior lateral side of right palm. (14). The doctor also opined that all the injuries were sufficient in the ordinary course of nature to cause death. He also stated that injury No.1 alone was sufficient in the ordinary course of nature to cause death. He also stated that injuries were caused by blunt object. In the cross examination, he made it explicit that there was no injury on the person of Bhanwar Nath caused by sharp edged weapon. He also stated that there was no injury on the person of deceased Bhanwar Nath caused by `sela or piercing wound caused by `bhala or any other weapon used from the sharp edged side. The other witnesses are formal witnesses. Looking to the controversy involved in the case, it is not necessary to refer-to their statements. (15). On re-appreciation of evidence, I am in agreement with the finding of the leaned trial court that the complainant party was the aggressor. The other witnesses are formal witnesses. Looking to the controversy involved in the case, it is not necessary to refer-to their statements. (15). On re-appreciation of evidence, I am in agreement with the finding of the leaned trial court that the complainant party was the aggressor. It is admitted by PW 7 Prem Nath that a day prior to the date of incident, there was a quarrel between his brother Kamal Nath and accused Amar Nath. Both the witnesses PW 7 Prem Nath and PW 14 Mangi Nath have stated that wife of Bhanwar Nath was with them when they left Nagaur, therefore, there was absolutely no occasion for Prem Nath to go to village Sarasani to leave his sister. It appears that Prem Nath had gone to Sarasani to settle the score with Amar Nath as he had assaulted his brother Kamal Nath on 27th i.e. a day prior to the incident. It has been admitted by PW 7 Prem Nath that he sat for answering the call of nature and excreta was discharged. At that time, Suraj Nath and Prem Nath gave lathi blows on his back. No injuries have been found on the back of Prem Nath. PW 18 Bhanwar Singh, the investigating officer, has stated that he did not find the human excreta in the field. This leads to the inference that the incident has not taken place in the manner stated by the prosecution. (16). It is also significant to notice that the injuries on the person of the accused Amar Nath have not been explained. PW 11 Dr. Satyendra Kumar proved injuries on the person of Amar Nath vide Ex.D.2, Not only the prosecution has failed to explain the injuries on the person of Amar Nath but an attempt has been made to give a false explanation. PW 1 Barjudi in her statement has stated that her sister-in-law caused injuries on the head of Amar Nath by blade. It may be recalled that the accused Amar Nath is the husband of sister of PW 14 Mangi Nath i.e. the husband of PW 1. PW 1 Barjudi in her statement has stated that her sister-in-law caused injuries on the head of Amar Nath by blade. It may be recalled that the accused Amar Nath is the husband of sister of PW 14 Mangi Nath i.e. the husband of PW 1. It is of course true that the injuries are simple in nature on the body of accused Amar Nath but in the present facts of the case when the prosecution witnesses are lying on material point, it creates doubt if the incident has taken place in the manner suggested by the prosecution. (17). There is yet another important aspect which completely falsifies the evidence of PW 7 Prem Nath and PW 14 Mangi Nath inasmuch as the ocular evidence is inconsistent with the medical evidence. With respect to the assault on deceased Bhanwar Nath, all the prosecution witnesses are consistent that the accused Amar Nath gave a blow on the head of deceased Bhanwar Nath by a`sela and Ratan Nath caused injuries by `bhala. But the post mortem report Ex.P.21 does not indicate any injury on the person of Bhanwar Nath caused by a sharp edged weapon. It is admitted by PW 12 Dr. Vijay Singh that there is no injury caused by sharp edged weapon. (18). It is also significant to notice that in the FIR, the name of Madho Nath has been mentioned as an eye witness. It is stated in the FIR that hearing the cries, Madho Nath also arrived-at the spot and the incident was also witnessed by him. However, the said independent witness Madho Nath has not been produced. In the facts of the case, the examination of the said independent eye witness was essential to unfold the true incident. The non-examination of Madho Nath leads to the inference that the incident has not taken place in the manner suggested by the prosecution. (19). Thus, it appears from the aforesaid discussion that the origin of the occurrence is shrouded in the deep mystery. The discrepancies as pointed out in the prosecution case is of fundamental importance. They tend to falsify the evidence of the eye witnesses. Thus, it is clear that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. It is unfortunate that the prosecution has not come out with a true version and the result is obvious. (20). They tend to falsify the evidence of the eye witnesses. Thus, it is clear that the prosecution has failed to prove the case against the appellants beyond reasonable doubt. It is unfortunate that the prosecution has not come out with a true version and the result is obvious. (20). Consequently, this appeal is allowed and the judgment of the learned Addl. Sessions Judge, Nagaur dated 2.8.1982 convicting the accused appellants of the offence u/s. 304 Part II IPC is quashed and set aside. They are acquitted of the said offence. The appellants are on bail, their bail bonds stand cancelled.